AMENDMENT NO. 4 TO PARTICIPATION AGREEMENT BETWEEN TRANSAMERICA ADVISORS LIFE INSURANCE COMPANY OF NEW YORK AND TRANSAMERICA CAPITAL, INC.
(Retail)
Exhibit 8(cccc)(6)
Amendment No. 4 to Participation Agreement (TST)
AMENDMENT NO. 4
TO
BETWEEN
TRANSAMERICA ADVISORS LIFE INSURANCE COMPANY OF NEW YORK
AND
TRANSAMERICA CAPITAL, INC.
This amendment to the Participation Agreement (the “Agreement”), dated September 1, 2008, is enter into by and between Transamerica Advisors Life Insurance Company of New York, a New York life insurance company (the “Company”), and Transamerica Capital, Inc., a California corporation (the “Distributor”) and is effective as of May 1, 2013.
WHEREAS, the Company and the Distributor, desire to amend the Agreement, as provided herein.
NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:
1. The existing first paragraph is deleted in its entirety and replaced with the following:
THIS AGREEMENT, dated as of the 1st day of September, 2008 by and among Transamerica Advisors Life Insurance Company of New York (the “Company”), a New York life insurance company, on its own behalf and on behalf of each segregated asset account of the Company set forth on Schedule A hereto, as may be revised from time to time, with notice to all parties, (hereinafter referred to individually as the “Account”) and Transamerica Capital, Inc., (the “ Underwriter”), a California corporation.
2. The existing first “WHEREAS” clause is deleted in its entirety and replaced with the following:
WHEREAS, the Underwriter, which serves as distributor to the registered investment companies listed on Schedule A hereto, as may be revised from time to time with notice to all parties (hereinafter referred to as the “Funds”), is registered as a broker –dealer with the Securities and Exchange Commission (the “SEC”) under the Securities Exchange Act of 1934, as amended, and is a member in good standing if the Financial Industry Regulatory Authority (“FINRA”);
3. The existing second “WHEREAS” clause is deleted in its entirety and replaced with the following:
WHEREAS, the Account is duly established and maintained as a segregated asset account, duly established by the Company, to set aside and invest assets attributable to variable annuity contracts set forth in Schedule A hereto, as may be revised from time to time, with notice to all parties (the “Contracts”).
4. The existing sixth “WHEREAS” clause is deleted in its entirety and replaced with the following:
WHEREAS, to the extent permitted by applicable insurance and taxation laws and regulations, the Company intends to purchase shares in the Funds (and classes thereof) listed in Schedule A hereto, as may be revised from time to time with notice to all parties, and the Underwriter is authorized to sell such shares in the Funds, and classes thereof, to the Account at net asset value.
2
5. A new paragraph, numbered consecutively, is added to Article II. Representations, Warranties and Agreements, as follows:
2.11 Commodity Pool Operator.
The Trust agrees to promptly notify the Company when any series fails to meet the exclusions set forth in Commodity Futures Trading Commission (the “CFTC”) Rule 4.5(c)(2)(iii), thereby requiring the investment adviser of the series, or any other affiliate, to register with the CFTC as a Commodity Pool Operator (“CPO”), as defined under the Commodity Exchange Act (the “CEA”), with respect to such series. Until such notification is provided to the Company, the Trust represents and warrants that none of its series require an investment adviser of any series or any other affiliate to register with the CFTC as a CPO. The Trust further represents and warrants that it will comply with the CEA and CFTC rules and regulations regarding CPO registration, to the extent required.
6. The parties agree to combine existing Schedules A and B into a single schedule, hereby referenced as “Schedule A”. Existing Schedules A and B of the Agreement are hereby deleted in their entirety and replaced with the attached Schedule A, which may be revised from time to time, with notice to all parties. All references to Schedule B in the Agreement are hereafter, a reference to Schedule A.
All other terms and provisions of the Agreement not amended herein shall remain in full force and effect. Unless otherwise specified, all defined terms shall have the same meaning given to them in the Agreement.
Effective Date: May 1, 2013
| TRANSAMERICA ADVISORS LIFE INSURANCE COMPANY OF NEW YORK | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | Vice President | |
| TRANSAMERICA CAPITAL, INC. | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | Vice President | |
3
SCHEDULE A
Revised May 1, 2013
SEPARATE ACCOUNTS
ML of New York Variable Annuity Separate Account D
POLICIES/CONTRACTS
Xxxxxxx Xxxxx Investor Choice Annuity® (NY) (XXX Series)
FUNDS – CLASS A SHARES
Transamerica Diversified Equity
Transamerica Flexible Income
Transamerica Growth Opportunities
Transamerica Small/Mid Cap Value
4
